MARGARET MCLEAN: Is Bulger a killer or just a crook?

Saturday

Jun 15, 2013 at 12:01 AMJun 15, 2013 at 3:11 PM

For the prosection, James “Whitey” Bulger was a “hands-on killer” who ruled his criminal empire by fear. The defense admits that Whitey is a criminal, but not a savage murderer and especially not a killer of women.

Margaret McLean

Wednesday marked the first day of testimony in the trial of Whitey Bulger and the first real battle between seasoned courtroom warriors.

The courtroom is both a battleground and a stage when the jury is present. Jurors notice details.

Whitey Bulger, wearing shamrock green, made eye contact with the jurors who will decide his fate. He also poured his lawyer a glass of water.

This was likely orchestrated as a small gesture showing that the alleged mobster on trial is courteous. Lawyers know that every word, gesture, and facial expression is fair game for judgment.

Opening statements are crucial. Both sides must provide the jury with the theory of their cases. It’s an opportunity for lawyers to connect with jurors.

The government goes first for it has the burden of proof, and Assistant U.S. Attorney Brian Kelly accepted the challenge. He had to come up with a clever way to condense his mammoth case against Whitey and keep it compelling within an hour’s time.

The government’s goal is to paint a mental image of Whitey Bulger as a “hands-on killer” who ruled his criminal empire by fear. Kelly set the scene with the murder of Arthur “Bucky” Barrett, a father and husband, chained to a chair, psychologically tormented, shot in the head, and buried in the basement.

He drew back the curtain on Whitey’s world of racketeering and called him a “hands-on killer.” Kelly hit a home run when he announced all 19 murder victims' names and flashed their pictures on the screen creating a somber mood like the 9/11 memorial services. Jurors must have imagined bells tolling.

Defense attorney Jay Carney had a tough act to follow.

He began with a soothing voice, thanking jurors for their service, and admitting he had a challenging task. Carney asked jurors to visualize a meal prepared in a restaurant’s kitchen where they spend time making it look appealing before they serve it.

“We’re going to show you what happens in the prosecutor’s kitchen,” he said.

This image plays right into the theory of Whitey’s defense: what's the government “cooking up” today? Carney plans to open that kitchen door and expose the recipes of cover-ups, compromised investigations, and self-serving government officials dating back to the 1960s.

By pointing the finger at a corrupt government, he is hoping to create reasonable doubt in the minds of jurors. Carney also disparaged key government gangster witnesses who have every reason to lie.

Carney surprisingly admitted that Whitey is a criminal, but not a savage murderer and especially not a killer of women. The legal tactic is to concede something because there’s too much evidence that Whitey was involved in organized crime. He denied that Whitey was ever an FBI informant because he’s Irish and wouldn’t have the inside scoop on the Italian Mafia.

Stephen “The Rifleman” Flemmi was the real rat. Carney did not tell the jury that he expects Whitey to take the stand in his own defense. Doing so would be risky if Whitey changes his mind and exercises his right to remain silent.

Lt. Robert Long of the Massachusetts State Police was the first witness called by the government. Long performed surveillance of the Lancaster Street Garage in Boston where Whitey allegedly ran his criminal enterprise in 1980.

The strategy of calling Long first worked to establish Whitey as a connected leader in Boston's criminal underworld. The government established a Godfather-like setting with photos and video of Whitey associating with Old World Italian gangsters. The photos and video will serve to identify notorious crime figures in Boston’s underworld throughout the trial.

Jay Carney provided jurors with their first taste of cross-examination. The secret to effective cross is to make your point with leading questions and sit down. Carney scored with two key points. First, that the surveillance conducted by the State Police in 1980 lacked audio. Second, when police planted a listening device the location was compromised by a leak.

Strategically, it was a good move for the government to call Col. Thomas Foley next. He offered that crucial expert testimony that a prosecutor needs to educate the jury about organized crime. He explained things like loan sharking and shakedowns. Through Foley, the government introduced tangible evidence of Whitey’s vast criminal enterprise: big guns and plenty of them.

Hank Brennan’s cross-examination of Foley was crisp and effective. The defense tactic was to force Foley to admit his frustrations with the FBI and the Department of Justice for compromising State Police investigations. He also used Foley’s book, ‘‘Most Wanted’’ to impeach him, which especially riled Foley when asked about doing small favors for hit man John Martorano. Foley blamed his publisher and co-author for any inaccuracies.

The week ended with colorful testimony from two bookmakers and one operated extensively on the South Shore. The government’s strategy was to educate the jury about the mountain of money that Whitey’s criminal empire raked in through illegal gambling.

Next week the government will likely call one of its stars: hit man Martorano.

Expect a sword fight like you’d see in the movie Braveheart.

Margaret McLean is a former prosecutor, law professor at Boston College, and resident of the South Shore. She is co-authoring a book about the trial with Jon Leiberman entitled “The Gavel Strikes: